Jeromie
Kramer appeals from his convictions for sexual abuse in the
third degree and lascivious acts with a child following a
bench trial. He raises a number of arguments on appeal,
specifically: 1) an actual conflict of interest with the
victim's guardian ad litem resulted in an unfair trial,
(2) the State did not present sufficient evidence of either
"touching" or any "sex act, " (3) the
trial court's written findings included an incorrect
statement that the victim had no inconsistencies in her story
and no motive to fabricate allegations, (4) the trial
court's decision not to afford weight to pages from the
victim's journal was clear error; (5) the trial court
erred by granting the guardian ad litem's motion for a
protective order preventing him from taking the victim's
deposition again after the trial information was amended to
add felony charges, and (6) the trial court erred by
admitting parts of the victim's deposition into evidence
as prior consistent statements.

I.
Background Facts and Proceedings.

In
December 2015, the State charged Kramer by trial information
with indecent contact with a child. It was alleged the
conduct occurred in December 2014, when P.W.-the complaining
witness-was twelve years old and staying at Kramer's
home.

The
next day, the county attorney filed a motion to have a
guardian ad litem (GAL) appointed. The motion requested the
attorney by name, stating the attorney "has agreed to
provide said representation." The district court granted
the motion.

In
April 2016, Kramer deposed P.W.

In May,
the State amended the charges filed against Kramer to sexual
abuse in the third degree[1] and lascivious acts with a child,
[2]
both class "C" felonies.

In
June, the GAL filed a motion asking the court to "issue
a protective order to bar the defendant from deposing the
child victim again" because "[f]urther depositions
of the child are unnecessary and abusive to the child"
and "[a]ny amendments to the original trial information
. . . stem from the same series of events that were the basis
for the questions by counsel for defendant."

At a
hearing on the motion, Kramer orally resisted the motion,
claiming he was entitled to a second deposition because of
the amended and substituted trial information. The court
noted that the elements of the original charge and the later
charges were different but that "all are based on the
same conduct and incident, " and "it is not
apparent, . . . after reading the deposition, what additional
information defense counsel could learn about the incident by
asking additional questions." The court granted the
GAL's motion, which had been joined by the prosecutor,
but further elaborated, "[T]his order is without
prejudice to Defendant filing an application for a further
deposition of the child victim specifying his intended
area(s) of inquiry and why the current deposition is not
sufficient in those regards." Kramer never filed the
responsive application.

The
criminal case was tried to the bench in September. At trial,
P.W. testified about a specific instance when she was living
in Kramer's home in December 2014, where she was sitting
on the couch with Kramer and he was massaging her feet. At
some point during the massage, she fell asleep. She awoke
some time later to P.W. using her feet to rub his penis
through his sweatpants. P.W. fell back asleep. Later, she
woke up and sat up, removing her feet from Kramer's hands
and placing them on the floor. She testified Kramer then
began giving her a hand massage with his hands but ultimately
moved her hand to his genitals and then proceeded to use her
hand to massage his genitals in the same manner he used her
feet and toes.

Kramer
testified in his own defense. He testified it was not
uncommon for him to give P.W. a hand or foot massage, but he
denied ever purposefully using P.W.'s hand or feet to
touch or massage his genitals. He testified there was at
least one instance where he was giving her a hand massage and
they both fell asleep, with her hand then falling into the
area of his genitals. He testified similarly to giving her a
foot massage and ultimately having "one or both of them
fall asleep" with her foot then falling onto his stomach
then "slid[ing] down if she's moving around."

Two
police officers who conducted an interview with Kramer
testified that he knew of the incident in question before
they began interviewing him. He denied ever forcing her hand
or foot to his genitals but agreed it was possible her hand
or feet had touched his penis through his clothes. When he
was asked if he had an erection, Kramer qualified that it was
not a "full-blown erection" and compared it to
"morning wood." At trial, Kramer denied ever
telling the officers he had any erection of any sort.

On
October 13, the court found Kramer guilty as charged. In
reaching its determination, the court noted:

Although the 14 year old witness was interviewed by a
forensic interview, deposed by defense counsel and gave
testimony at trial, there is no evidence that she made
inconsistent statements regarding any material issue. She
also appeared to have nothing to gain or any other motivation
to fabricate her testimony. Finally, her testimony was
reasonable and consistent with surrounding circumstances.

In
November, Kramer filed a motion for new trial, informing the
court for the first time that the GAL for the minor child had
previously represented Kramer in an adoption proceeding in
2014, the same year in which the child resided with Kramer
and his wife. Kramer maintained the GAL's representation
of P.W. "constituted a conflict." At the hearing on
the motion, Kramer argued "that the Defendant has a
right to an impartial trial and we almost have to assume that
there was prejudice." The GAL testified, "The
Defendant and his wife had been approved by [the Iowa
Department of Human Services (DHS)] to adopt a child that was
in their care. So I was contacted by DHS and the family to
prepare the paperwork." She later elaborated:

In a DHS adoption, DHS has custody of the child so they-the
DHS manager, supervisor will sign a release, a consent to the
adoption. So it's not a matter of what I think of the
adoption. Petitioners-the only option for that adoption is
with the Petitioners who have been approved by DHS.

When
asked directly if she had provided the victim with any
privileged information she obtained from Kramer, the GAL
said, "No." When asked if she "ever revealed
any information to [the county attorney] about this adoption
proceeding involving the defendant, " the GAL testified:

Not that I can recall right offhand. Typically, if I am ever
appointed guardian a[d] litem in a criminal case, there's
not much contact between myself and the County Attorney's
Office other than for things such as scheduling, you know,
more routine procedural matters like that. There is rarely
ever, if any, substantive information shared.

The
county attorney asked again if the GAL could "think of
any substantive information that you ever provided the County
Attorney's Office, " and she replied, "No,
not-there wasn't any to provide and I don't-I
didn't provide any."

She
also testified that Kramer's trial counsel-Kramer had
obtained different counsel after the verdict was entered-had
been aware of her representation of Kramer in the earlier
case. During the hearing, Kramer's counsel asked the GAL
why she had not "reveal[ed] to the court early on that
[she] had represented [Kramer], " and the GAL responded:

Those were substantially different matters and that DHS
adoption, I have very little actual contact with the family
who is adopting. My payment comes through DHS. All the
information comes through DHS. The DHS adoptions are
substantially different than a private adoption matter. So
the actual relationship forming information gathering, that
is typically done in adoptions simply does not need to be
done in a DHS adoption because DHS has investigated the
family and actually signed that this is the family that
should adopt the child.

The
court denied Kramer's motion, ruling from the bench:

According to the evidence provided by [the GAL], she provided
no information learned in the adoption proceedings to either
the victim or the County Attorney nor did she use any such
information in these proceedings.

Secondly, as this Court has listened to what information is
typically normally obtained in DHS adoptions and in
consideration how that might materially advance the
victim's position in these proceedings, this doesn't
seem that it would. . . . And it would ...

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